State Bar Rules "Spymail" And Email "Tracking" Software Unethical

Lawyers and law firms using “spymail” and other “tracking” software in emails sent to opposing counsel and clients are inviting an ethics complaint and potential disbarment as more and more states ban the use of this developing technology in the practice of law.

The specific technology, operation, and other features of such email “tracking” software vary widely, but essentially a sender may use email “tracking” software application embedded in each email to secretly monitor the opposing attorney’s and party’s receipt and subsequent handling of the email message, including any attachments.

In a recent advisory Opinion No. 18-01, the Illinois State Bar Association ruled an attorney’s use of such “tracking” software is unethical, holding:

“A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software.”

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